FCC Indecency Rules Go Back to the Drawing Board

Surely when U2 lead singer Bono unwittingly dropped the "f-bomb" before a live TV audience at the 2004 Golden Globes, he couldn't have imagined the fallout would lead all the way to a federal appeals court.

Certainly, it could easily be argued that the slip-up was inadvertent, the kind of thing anybody might say when overwhelmed or surprised. And no one who saw the broadcast--which got plenty of press coverage due to the expletive--could harbor any reasonable belief that Bono was referring to a particular physical act often associated with the forbidden word. It appeared to be an innocuous misstep.

But that slip of the tongue by the Irish rocker spurred the FCC to issue tough new anti-indecency guidelines, with Congress eventually chiming in to raise maximum FCC fines from $32,500 per incident to $325,000.

"The FCC has significantly modified the criteria it uses--particularly with respect to fleeting utterances, 'spontaneous outbursts,' and the presumptive indecency of [certain curse words]," says Andy Schwartzman, president of the Media Access Project, a Washington, D.C.-based First Amendment legal advocate. "The changes come in the context of a statute that increases the fines for indecency violations tenfold, so a modest cost of doing business now turns into serious money even for the huge media networks."

Within a year, ABC, CBS and Fox TV networks, along with several of their affiliated stations, all ran afoul of the FCC and its new guidelines. While not levying any fines, the FCC ruled that four programs appearing on the three networks from 2002 to 2004 violated its cleanliness standards.

The networks drew a line in the sand and appealed the ruling to the 2nd Circuit Court of Appeals in Manhattan in Fox Television Stations et al. v. FCC, asking the court to enjoin the FCC from enforcing its new rules. In turn, the FCC asked the court to remand the case to allow the agency to undergo a two-month internal review of its enforcement policies. On Sept. 7, the 2nd Circuit split the difference: it temporarily halted the enforcement of the FCC guidelines and granted the FCC's request for a remand.

Judicial Restraint

The decision signals that courts are willing to reevaluate the balance the FCC is striking between broadcasters' free speech rights and the government's interest in keeping indecency off the public airwaves.

The networks didn't return calls for this article. But Charles "Chip" Babcock, a partner at Jackson Walker who has tried numerous First Amendment cases, called the decision "really good news for the networks," and believes it is a signal that the courts may limit the broad enforcement powers the FCC has seized in recent years.

"The 2nd Circuit historically has been very good on First Amendment issues, and if you read their order, it's clear they're going to take this issue up very quickly," Babcock says. "That oftentimes indicates that the court thinks there's a serious public interest in the matter."

However, depending on what the FCC does in the intervening two-month period, the agency may be able to circumvent a court ruling on the underlying issue of its authority to regulate the networks. Critics of the FCC claim that asking for a remand is merely a tactic to prevent the court from limiting its authority.

Through a spokesman, Clyde Ensslin, the FCC declined to comment on the case, but the blunt language in its filings left little doubt as to what it thought of its foes' concerns about its remand request. Its petition to the 2nd Circuit for a remand is peppered with disdain for the networks' argument that a remand would have a "significant chilling effect on speech."

The FCC characterizes the networks' position as seeking "a two-month free pass" to air expletives during times when children were likely to be in the viewing audience. The FCC also argues there was no basis for the court to issue a sweeping injunction on FCC enforcement actions.

"This motion [for remand] is supported by four of the six petitioners in this case and three of the four network affiliate associations that have intervened," the FCC's brief reads.

"Together, the parties supporting the stay hold far more broadcast licenses than do the parties in opposition. This level of broadcaster support for the motion is impossible to reconcile with the shrill insistence of Fox, NBC and CBS (the "opposing networks") that the request for remand is a bad-faith delaying tactic whose only purpose is to chill broadcast licensees' constitutionally protected speech."

Speaking Up

But it is just that argument--the so-called "chilling effect" on speech--that seems to be at the core of the networks' case against the FCC. They argue the FCC guidelines are something of an arbitrary "catch-all" that is too broad and inconsistently applied.

The networks also attack the foundation of the agency's jurisdiction to regulate them--claiming it is based on obsolete legal logic.

"When the FCC Act was upheld against a First Amendment challenge, the Supreme Court based its decision on a 'scarcity' argument, that public airwaves were a scarce commodity," Babcock says. "That was true in the 1940s, 1950s, even the 1960s, but that's no longer true. There are no scarce airwaves with the advent of technology. I'm not sure the FCC ought to be regulating in this way at all."

Meanwhile, the FCC argues that it has a clear statutory mandate to regulate indecency on network television and sought the stay simply to rethink its approach to enforcement of its policies. The courts will now have the opportunity to reconsider both sides of the debate. But the 2nd Circuit's decision on Sept. 7, 2006, sheds little light on what the court might do.

"It's hard to say," Babcock says. "The FCC asked for the 60 days, but what you can see is that the court appears to be taking this very seriously. It is an indication that the court believes this is a serious and immediate issue. But I don't think you can read into that who's going to win or lose."